The National Labor Relations Board (NLRB), the independent federal agency charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices in the US, has announced that it will appeal to the US Supreme Court a decision that the recess appointments made by President Obama to the NLRB were unconstitutional and, therefore, effectively void. The ultimate decision by the Supreme Court will determine the validity of hundreds of significant NLRB decisions made since the appointments on issues ranging from social media to union rights. If the Supreme Court finds that the people making those decisions were not properly appointed, those rulings cannot stand.

The appeal to be heard by the Supreme Court will consider the January 2013 holding of Noel Canning v NLRB in which a three-judge panel of theWashington D.C. Circuit Court held that President Obama’s appointments to the NLRB whilst the Senate was away for the holiday break in January 2012 were an unconstitutional exercise of presidential power. As a consequence of its finding that the appointments were unconstitutional, the Circuit Court held that the NLRB did not have the required quorum of three legitimate members to issue an NLRB ruling; therefore the Board’s decision was overruled. As a result of this decision, all NLRB rulings made since the January 2012 recess appointments have now been called into question and the same will continue going forwards until the NLRB's appeal is resolved.

The NLRB’s appeal will likely be heard when the Supreme Court’s next term begins in October. In the meantime, employers should treat any NLRB rulings made in the last year with caution and seek legal advice on any interpretive issues.